District attorneys' system for tracking untrustworthy cops chaotic

Eric Dexheimer and Ciara O'Rourke

Monday

Dec 12, 2016 at 12:01 AMSep 25, 2018 at 6:52 PM

In January 2013, Laurie English, a district attorney whose sprawling jurisdiction includes five West Texas counties, wrote a letter to a regional Texas Department of Public Safety supervisor about one of his patrolmen. Trooper Norbert Ortiz, a 25-year veteran of the agency, had once worked in the area and was now seeking to return.

“Please note my objection to that requested transfer,” she began.

“I dismissed and/or refused several cases that Norbert submitted near the end of his tenure in Sonora and Ozona because he had damaged his credibility to the point that I could no longer trust him,” the prosecutor wrote. “I will not accept any cases filed by (him) … I do not trust him. I do not anticipate that will ever change.”

English said Ortiz did not move back to her district; however, state records show he continued to work as a trooper for another year.

Criminal cases are built on a police officer’s credibility. The so-called Brady law requires prosecutors to tell those charged with a crime about any evidence that could help them. In Texas, the 2013 Michael Morton Act, named for the Williamson County man who spent 25 years in prison for murder before evidence withheld by prosecutors cleared him of the crime, strengthened the disclosure requirement.

It has been an open secret that many Texas district attorney offices keep either official or unofficial lists of police officers whose histories of lying or other misconduct would have to be revealed to defense lawyers. Like English, some have even taken the additional step of declaring in writing that an officer has lost so much credibility that they will not risk placing him in front of a jury.

Starting last summer, the American-Statesman asked each of the state’s district attorneys for copies of such letters as well as their “Brady lists.” Some responded with full lists and letters, identifying police officers by name. A few would release only the aggregate number of officers on their list. Many simply refused.

Police organizations generally oppose the publication of such lists, contending some cops don’t belong on them and that others should not be subject to unfair public condemnation without context. Yet the way prosecutors handle police with credibility issues can have serious consequences for the public.

An officer with a questionable history might not kill a case, but defendants deprived of that information are denied a potential defense. In Hays County, Jenna Moralez recently won her DWI case when prosecutors neglected to tell her until halfway through her trial that her arresting police officer had been blacklisted by the district attorney. “It’s almost like we have to discover something accidentally,” said her lawyer, Scot Courtney.

District attorneys across the state, meanwhile, have dismissed dozens of cases for fear a discredited officer’s testimony wouldn’t hold up in court. In Atascosa County, just south of San Antonio, documents show District Attorney René Peña dropped 11 drug cases last summer rather than rely on Pleasanton police officer David Gardner’s word.

Yet despite such stakes, the paper’s analysis of Brady lists revealed a system that is built on a patchwork of inconsistent policies and riddled with holes. What is considered untrustworthy in one county may not face such scrutiny elsewhere. Disciplinary files easily accessible in one city are protected information in others.

“This issue is one we’ve got to address,” said Judge Barbara Hervey, one of nine justices on the Court of Criminal Appeals, Texas’ highest criminal court. “It’s all over the map.”

Problematic police officers are identified informally or haphazardly. In August 2011, when Bell County District Attorney Henry Garza declared he would no longer accept cases from DPS trooper Chad Estes, he cited a perjury case in Amarillo. The case was more than a decade old, and Estes had been acquitted. Estes, who still works as a trooper in Austin, did not show up on any other prosecutor’s list.

And while many prosecutors compile their lists from public records, several admitted their decision to ban a cop from court was based on private information. Because that information is unavailable in the public record, it limits its dissemination to and evaluation by other district attorneys. In Jones County, west of Fort Worth, District Attorney Joe Edd Boaz said his office had identified an officer it would not use in criminal cases because he had been implicated in a crime in nearby Abilene. The officer was never charged, but Boaz said that doesn’t matter.

“If you have underlying information provided to you in confidence, that presents an ethical situation,” he said.

Without a central registry or standard method of communicating, a police officer considered potentially toxic in one county often can move to another without that information following him. “Sometimes you don’t even know” about a police officer’s compromised disciplinary history — “particularly those who move frequently,” said Sherri Tibbe, the former Hays County district attorney.

In Ellis County, District Attorney Patrick Wilson notified the Red Oak police chief in May 2013 that he would no longer sponsor officer Zachary Beauchamp as a witness in cases. “On more than one occasion he made false statements in police reports and fabricated the basis for initiating a traffic stop,” Wilson wrote.

Records from the Texas Commission on Law Enforcement, however, show that Beauchamp is still working in a nearby constable’s office — something Wilson said he was unaware of.

“It beats anarchy”

Prosecutors have been legally required to disclose evidence that could help criminal defendants for more than a half-century. Decided by the U.S. Supreme Court in 1963, Brady v. Maryland compels prosecutors to alert the defense when a police officer involved in the case has a history of lying or other misconduct.

Despite the law’s long history, police departments and prosecutors nationally have struggled with implementing its details. “For defendants, the impeachment material in these files can mean the difference between life and death,” a January 2015 Stanford Law Review paper reported. “Despite the high stakes of applying Brady to these files — or, perhaps, because of them — there is no nationwide consensus on how to approach this issue.”

The state’s Michael Morton Act was a reaction to revelations that Morton had been wrongly imprisoned because prosecutors didn’t turn over evidence pointing to his innocence. The law, which went into effect in January 2014, broadened the types of evidence that prosecutors must hand over to defense attorneys. It also drew renewed attention to what are known as “Brady cops.”

Randall Sims, district attorney for Potter and Armstrong counties, said most prosecutors were already showing all of their evidence to the defense before the act passed. But he added the law has raised new questions about where to draw the line. “It’s made it to where you’re afraid not to give anything over,” he said. “You hear a rumor, you turn it over, because folks are going to try to go after our law licenses.”

Records and interviews with prosecutors across the state confirm there is no consistent approach in how information about questionable cops is collected and then disclosed to defendants.

In smaller, typically rural areas, district attorneys say the process is informal. Prosecutors glean information about officers’ histories from casual conversation, defense attorneys or even rumors.

Luck can also play a role.

Last spring, Polk County District Attorney William Lee Hon informed the local sheriff he wouldn’t accept cases brought by Deputy Craig Taylor because of a pending perjury case in nearby San Jacinto County. “I would not have known about the situation involving this deputy if it hadn’t happened in the county next door,” he said.

Taylor, who agreed to a pretrial deal that officially cleared his record, said the perjury case against him was baseless and stemmed from testimony he gave during his sister’s divorce hearing. “My department believed in me,” he said.

In Kaufman County, east of Dallas, Assistant District Attorney Susan Korioth said information about cops with credibility problems usually surfaces — eventually. But with 13 prosecutors juggling several thousand cases a year, “we don’t have the personnel to follow every person who should be watched. It’s not a perfect system. But it beats anarchy,” she said.

Disclosure of credibility-challenged cops tends to be casual in small departments as well. English said prosecutors in her office typically know officers personally and address credibility issues in person and with their employers as necessary. “It involves us making a phone call saying we’ve lost faith in this guy,” added Victoria County District Attorney Stephen Tyler, who said he currently has three unreliable officers from whom he won’t accept cases.

Larger counties say they’ve made efforts to formalize a system of disclosure with mixed success. “Most law enforcement agencies don’t have any such protocol,” said State Prosecuting Attorney Lisa McMinn. Although the El Paso Police Department has a designated representative charged with alerting prosecutors if an officer gets a black mark, “I cannot tell you with confidence that I’ve seen every officer with a disciplinary problem,” said District Attorney Jaime Esparza.

Dayna Blazey, an assistant district attorney for Travis County, said the office doesn’t have a list of Brady cops. But she said when prosecutors learn an officer has been disciplined for an action that could call his or her credibility into question, a team of supervisors reviews that information and files it away. Then, when prosecutors are preparing for trial, they search the records for any officers who might be called as witnesses. If there’s information that could help the defendant, prosecutors tell the defense attorney.

Even though Travis County infrequently has dropped cases as a result of an officer’s dicey credibility, Blazey said prosecutors have not blacklisted any officers. “It’s case-specific,” she said. “You have to look at what is the officer’s involvement in the case … it’s a balancing test.”

“An intolerable breach”

Yet some prosecutors say an officer’s reputation can fall so far that they are left with little choice other than a complete courtroom ban — at least within their jurisdiction.

“That sort of thing will just ruin things in a small county,” said Korioth, of Kaufman County. “If you put someone on the stand who you can’t vouch for, it just gets ugly. ”

In May 2011, her then-boss, Michael McLelland, cited an internal DPS investigation when he wrote to a sergeant to say his office would no longer accept cases that trooper Dexter Barkley was associated with “in any way.”

Korioth said her office does not alert other prosecutors of such local decisions. DPS spokesman Tom Vinger said Barkley today works only on administrative duties. He added that the agency addresses such situations on a case-by-case basis and may adjust a trooper’s assignment as necessary.

In other cases a prosecutor’s decision to blackball a law enforcement officer from court has appeared strictly local and personal. In Victoria County, Tyler charged local police officer Carlos Echeverry with making sexual advances toward a woman he stopped in 2006. Even after a jury acquitted him, however, Tyler — who said for a six-month period in 2008 he refused all Victoria police cases — informed the police chief he still would not accept any case in which Echeverry was a witness.

“I wouldn’t have gone to trial if I didn’t believe the charges,” he said. State records show Echeverry continued working as a Victoria police officer through October 2014, though Tyler said he was assigned to a desk job after his official ban.

Perhaps no district attorney in Texas has been more unsparing in his judgment of cops with credibility issues than Patrick Wilson, a career prosecutor who has held the top job in Ellis County, just south of Dallas, for the past four years. Since then, he has declared in writing that he would not accept cases in which seven local police officers played a central role.

He banned Jason Davis after the Tarrant County sheriff’s deputy told an Ellis County prosecutor he couldn’t testify during a court hearing on a DWI case because he was busy investigating another case — an excuse that turned out to be untrue. “That is an intolerable breach of the integrity of the entire criminal justice system,” Wilson wrote to Davis’ boss, Sheriff Dee Anderson.

In a separate October 2013 letter to Davis, he added: “When you lied to my office in your capacity as a police officer you rang a bell that cannot be unrung… A police officer with no credibility is of no use in the prosecution of a criminal trial.” Ellis said he dismissed all of Davis’ pending cases, even though he was widely regarded as an excellent police officer.

After being fired, Davis worked briefly at the Pelican Bay Police Department before leaving law enforcement, records show.

Wilson said he can’t have known liars on his prosecution team — no matter where the untruth occurred or how it was discovered. “That’s the Perry Mason moment for every lawyer — when they find out a police officer has lied in a previous case,” he said.

In May 2013, he dismissed 22 pending cases in which officer Zachary Beauchamp was the primary witness after the officer was fired for poor conduct and untruthfulness. Most were drug possession cases.

Beauchamp said Wilson’s letter effectively ended his career. “No one will hire me,” he said. Beauchamp, who currently only handles paperwork at a local constable’s office and cannot make arrests, serve warrants or testify in court, said he intends to file a lawsuit over his termination.

It wouldn’t be the first one. In 2012, Wilson declared he would not bring any criminal cases Daniel Planeta touched after learning the Waxahachie police officer had failed a polygraph, even though the police chief had concluded there was insufficient evidence to discipline him for misconduct. After receiving Wilson’s letter, however, the chief fired Planeta, noting that an officer who couldn’t testify in court was of no use to him.

Planeta sued — one of a handful of similar lawsuits recently filed statewide, including one in Williamson County, in which police officers claim they were wrongfully terminated after prosecutors refused to accept their cases. “The police chief used this as an opportunity to fire him,” said Christopher Livingston, Planeta’s attorney. “It was a political decision.”

Wilson is sympathetic, but unmoved. “Does a person’s right to a job trump a person’s right to justice? The right thing ain’t hard to do: Don’t lie.”

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.